If no lawyer is listed, call 918-582-6422 and MoreLaw will help you find a lawyer for free.

Description: Pensacola, Florida criminal defense lawyer represented Defendant charged with committing incest.

A jury found Gary Dewayne Hardley guilty of incest with a
25-year-old female relative. At sentencing, the State sought to add
sexual penetration points to Hardley’s sentencing guidelines
scoresheet. The trial court denied the request and sentenced
Hardley to thirty days in county jail and forty-eight months of
probation. The State now appeals that sentence and challenges the
trial court’s failure to assess the penetration points.

The State charged Hardley with (1) sexual battery upon the
25-year-old relative, and (2) incest for having sexual intercourse
with her. The jury found Hardley guilty of incest but declined to
find him guilty of sexual battery. For both counts, however, the
jury’s verdict form included the specific finding that Hardley’s
penis had penetrated the woman’s vagina.

At sentencing, the State requested the addition of 80 sexual
penetration points to the victim injury portion of Hardley’s
criminal punishment code scoresheet under sections
921.0021(7)(b) and 921.0024, Florida Statutes (2018). Adding
these points would have raised the lowest permissible prison
sentence to 46.5 months. After hearing arguments from both sides,
the trial court declined to assess the penetration points, assessing
only 10 points for the incest conviction (a level 2 offense). The trial
court sentenced Hardley to thirty days in county jail and
forty-eight months of probation.

Soon after sentencing, the trial court issued a written order
detailing its reason for denying the State’s request to assess victim
injury penetration points. The trial court noted that it had “heard
the same case that the jury did, and [it] reached the same
conclusion as the jury—there was a shortage of evidence to support
the position that the incest was involuntary.” In the trial court’s
view, applying victim injury penetration points would violate the
Equal Protection Clause. No party had raised any constitutional
claims. Yet the trial court ruminated that, although the incest
statute was likely constitutional (in that it was supported by a
rational basis), the assessment of victim injury penetration points
would not pass constitutional muster because it would apply only
in cases of heterosexual incest. The State challenges that ruling.

Outcome: Because we conclude the trial court erred, we vacate Hardley’s sentence and
remand the case to the trial court for resentencing.

Plaintiff's Experts:

Defendant's Experts:

Comments: